Kenneth D. SCHMITT, Petitioner, v. STATE of Florida, Respondent, 590 So. 2d 404

PER CURIAM. We have for review Schmitt v. State, 563 So.2d 1095 (Fla. 4th DCA 1990), which expressly declared valid subsections 827.-071(l)(

g) and 827.071(5), Florida Statutes (1987). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. I. Facts In January 1988, the Martin County Sheriffs Office received information that Kenneth D. Schmitt was taking nude photographs of his twelve-year-old daughter. Deputies conducted an interview with the child, and based on that interview, a deputy applied for a warrant to search Schmitt’s house. In their entirety, the factual allegations in the probable-cause affidavit state: On this date, 1-7-88, your affiant interviewed juvenile Rachel Christine Schmitt, 4-6-75, of 300 E. Salerno Rd., Pt. Salerno, FI.

The interview revealed that the juvenile resides at the premises to be searched, along with her brother and father. She has lived at this residence for the past eight years. The juvenile revealed to your affiant that in 1983 her father, Kenneth Schmitt, had taken numerous nude photographs of her in various poses. These photo sessions started in 1983 and continued through 1987, the last photo session being shortly after Christmas. The juvenile was eight years of age when these photo sessions commenced.

The juvenile victim revealed to your affiant that her father had a nude adult white female pose for nude photographs in her presence. The juvenile victim also stated that she has taken nude photographs of her father numerous times. In December 1987, the father obtained a VHS video recording system. During this time, December 1987, the father utilized the camera to record the juvenile victim and a white female friend disrobe, or as the juvenile described it, stripping down to their panties. The juvenile victim also stated that she has reviewed this same video recording on the premises to be searched.

During the same time frame, December 1987, the father utilized the same VHS camera to record the juvenile victim swimming in the nude. Since 1983 the juvenile victim stated that the father has kept the photographs, films, cameras, VHS recording system, TV, and VCR at different locations inside the premises to be searched. The above offenses did occur within the county of Martin, Martin County, Florida [sic]. The affidavit then alleged that these facts established probable cause for violations of four statutes. Two of those alleged violations are relevant to this opinion. First, the affidavit alleged violation of

section 827.071, prohibiting sexual performance by a child. In pertinent part, this statute prohibits the knowing possession of any depiction known to include “sexual conduct” by a child. § 827.071(5), Fla.

Stat. (1987). “Sexual conduct” is expressly defined as actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. § 827.071(l)(g), Fla.Stat. (1987). Second, the affidavit alleged violation of

section 800.04, prohibiting lewd assaults or acts upon or in the presence of a child. In pertinent part, this statute outlaws the act of knowingly committing “any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery.” § 800.-04(3), Fla.Stat. (1987). Based on the affidavit, a warrant was issued and Schmitt’s house was searched. During the search, deputies discovered videotapes and related material that later formed the basis of the state’s case against Schmitt.

Reserving the right to appeal, Schmitt pled no contest to several of the charges, including violation of subsection 827.071(5). On appeal, the Fourth District rejected Schmitt’s argument that officers lacked probable cause to obtain the warrant. Although the Fourth District determined that subsection 827.071(l)(

g) was overbroad on its face, the court adopted a narrowing construction by reading a lewdness element into the applicable portions of the statute. On this basis, the court below upheld the constitutionality of the statute. Schmitt, 563 So.2d at 1098-1100. In this review, Schmitt argues first that the affidavit quoted above was facially insufficient to support a finding of probable cause. Second, he argues that his conviction under subsection 827.071(5), Florida Statutes (1987), is unlawful because that statute is unconstitutional. We disagree with both arguments. II.

Florida Law on Probable Cause As a legal concept, “probable cause” is not capable of a bright-line test. Rather, it involves a fact-intensive analysis that necessarily varies from context to context. In particular, the courts are required to weigh two interests that usually are in conflict: society’s recognition that its police forces should be given discretion to investigate any reasonable probability that a crime has occurred, and the individual’s interest in not being subjected to groundless intrusions upon privacy.

In the past, we have defined “probable cause” as a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged. Dunnavant v. State, 46 So.2d 871 (Fla.1950). The reasons cited by the police must be sufficient to create a reasonable belief that a crime has been committed. Florida East Coast Ry. Co. v. Groves, 55 Fla. 436, 46 So. 294 (1908).

As long as the neutral magistrate has a substantial basis for concluding that a search would uncover evidence of wrongdoing, the requirement of probable cause is satisfied. Polk v. Williams, 565 So.2d 1387 (Fla. 5th DCA 1990). In the same vein, the United States Supreme Court has noted: The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.

And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for ... conducting] that probable cause existed. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. • 2317, 2332, 76 L.Ed.2d 527 (1983) (emphasis added) (quotation marks omitted). Confining our inquiry entirely to the four corners of the affidavit, as required by law, e.g., State v. Bond, 341 So.2d 218 (Fla. 2d DCA 1976); see § 933.18, Fla.Stat. (1989); Fla.R.Crim.P. 3.190(h)(1) (1990), the next question is whether the factual allegations created a substantial basis for concluding that probable cause existed.

We believe they did. III. Probable Cause in the Present Case We note initially that the present case requires the drawing of a very fine line. On one hand, the law is now well settled that simple non-obscene nudity in photographs or films is a protected form of expression under the first amendment. New York v. Ferber, 458 U.S. 747, 765 n. 18, 102 S.Ct. 3348, 3359, 73 L.Ed.2d 1113 (1982); Jenkins v. Georgia, 418 U.S. 153, 161, 94 S.Ct. 2750, 2755, 41 L.Ed.2d 642 (1974).

Nor is it a crime in Florida for a parent simply to appear unclothed in front of a child in the family home, or a child in front of a parent, with no lewd or abusive intent. Far too many entirely innocent situations would be criminalized by a contrary determination. Thus, in such matters, families and home-dwellers have a legitimate privacy interest that the law must respect. On the other hand, the Court must be mindful that sexual exploitation of children is a particularly pernicious evil that sometimes may be concealed behind the zone of privacy that normally shields the home.

The state unquestionably has a very compelling interest in preventing such conduct. The two pertinent statutes recited in the probable cause affidavit clearly are aimed at rooting out the sexual exploitation of children. First,

section 827.071 (prohibiting sexual performances by a child) requires not merely nudity but depictions or representations of actual sexual intercourse, deviate sexual acts, bestiality, masturbation, sadomasochism, “lewd” exhibition of the genitals, the touching of a person’s clothed or unclothed privates or buttocks, or actual or simulated sexual battery. § 827.-071(l)(g), Fla.Stat. (1987). Of these requisite acts, the only relevant one is “lewd” exhibition of the genitals.

We believe the affidavit did in fact create a substantial basis for the magistrate below to conclude that probable cause existed as to this particular crime. Under Florida criminal law the terms “lewd” and “lascivious” are synonymous: Both require an intentional act of sexual indulgence or public indecency, when such act causes offense to one or more persons viewing it or otherwise intrudes upon the rights of others. Rhodes v. State, 283 So.2d 351, 356-57 (Fla.1973) (citing Chesebrough v. State, 255 So.2d 675, 678 (Fla.1971), cert. denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972)).

The terms “lewd” and “lascivious” thus mean something more than a negligent disregard of accepted standards of decency, or even an intentional but harmlessly discreet unorthodoxy. See Chesebrough, 255 So.2d at 678. Acts are neither “lewd” nor “lascivious” unless they substantially intrude upon the rights of others. By the same token, it is evident beyond all doubt that any type of sexual conduct involving a child constitutes an intrusion upon the rights of that child, whether or not the child consents and whether or not that conduct originates from a parent.

As noted earlier, society has a compelling interest in intervening to stop such misconduct. Thus, if Schmitt’s true purpose was the intentional exploitation of his daughter for a sexual purpose, then his conduct was “lewd” within the meaning of Florida law and is punishable as such. While it is conceivable that one might view the allegations in the present affidavit as depicting simple nudity, we believe the magistrate had a substantial basis for concluding otherwise.

The affidavit’s factual allegations indicated that Schmitt did not treat the nudity of himself, his daughter, and others in the offhand, natural manner that might be expected if the conduct were purely innocent—for example, if they were nudists. Rather, the affidavit shows he made nudity a central and almost obsessive object of his attention. Thus, the magistrate reasonably could have believed that Schmitt’s conduct toward his daughter included the “lewdness” element required by the statute.

While nudity alone would not have sufficed, this overall focus of Schmitt’s conduct tended to show a lewd intent and thus created a substantial basis for believing that the search would fairly probably yield evidence of a violation of

section 827.071. Thus, the magistrate must be upheld. Gates, 103 S.Ct. at 2332. Second and for the same reasons, the affidavit justified the magistrate’s conclusion that a violation of

section 800.04 had occurred. In pertinent part, that statute requires a “lewd or lascivious act in the presence of any child.” Once again, we must construe the terms “lewd” and “lascivious” in light of our earlier precedent. Rhodes; Chesebrough. Here, we believe the affidavit created a substantial basis for the magistrate to conclude that Schmitt had participated in an intentional indecent act intruding upon the rights of his daughter. That is, Schmitt’s conduct as described in the affidavit made nudity the focus of his attention, creating a reason to believe he was acting with a lewd and lascivious intent.

This created a substantial basis justifying the magistrate’s conclusion that probable cause existed of a violation of

section 800.04. For the above reasons, the decision of the magistrate to issue a warrant may not be disturbed on appeal. The warrant and all that flowed from it was lawful, because the magistrate had a substantial basis for believing that a search of Schmitt’s home would disclose evidence of a violation of sections 827.071 and 800.04. Gates. IV. Constitutionality of

Section 827.071 We next turn to the question of whether

section 827.071 is constitutional. Both the Fourth and Fifth Districts have concluded that the statute is overbroad on its face, and the state conceded as much at oral argument. However, there is substantial disagreement on how to remedy the problem. As noted above, the court below attempted to eliminate the statute’s patent over-breadth by reading a “lewdness” element into the statute, Schmitt, 563 So.2d at 1099-1100, a position also endorsed by the state at oral argument. The Fifth District, meanwhile, has remedied the problem by severing the portion of the statute identified as being overbroad. State v.

Tirohn, 556 So.2d 447 (Fla. 5th DCA 1990). We now must resolve this conflict. A. Overbreadth The question of overbreadth is one of the rare exceptions to the rule that courts will not consider factual questions beyond the scope of the case at hand. “Hypothetical consequences” aré considered in the case of allegedly overbroad statutes precisely because this is the only way to give effect to the constitutional right of free speech. Art. I, § 4, Fla. Const.

As we stated in another case dealing with an obscenity statute, [T]he mere existence of statutes and ordinances purporting to criminalize protected expression operates as a deterrent to the exercise of the rights of free expression, and deters most effectively the prudent, the cautious and the circumspect. ... State v. Keaton, 371 So.2d 86, 91-92 (Fla.1979) (quoting Spears v. State, 337 So.2d 977, 980 (Fla.1976)). The deleterious result of overbroad statutes often is described as a “chilling effect.” Ferber, 458 U.S. at 772 n. 27, 102 S.Ct. at 3362 n. 27; see Broadrick v.

Oklahoma, 413 U.S. 601, 611-14, 93 S.Ct. 2908, 2915-17, 37 L.Ed.2d 830 (1973). The over-breadth doctrine and its requirement of considering hypothetical consequences is intended to eliminate this chilling effect and thus allow for the free, unhindered exercise of constitutional rights. Accord Art. I, § 4, Fla. Const. Florida case law is replete with instances in which this Court has stricken an obscenity statute because of its over-breadth after we considered the hypothetical consequences. E.g., Keaton, 371 So.2d at 92-93; Brown v. State, 358 So.2d 16 (Fla.1978); Spears, 337 So.2d 977 (Fla.1976).

Indeed, application of the over-breadth doctrine is particularly appropriate where, as in Keaton, Brown, and Spears, the statute clearly infringes upon protected forms of pure speech. See Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917-18. However, in the context of free speech and expression issues, the overbreadth doctrine is an unusual remedy that must be used sparingly, especially where the statute in question is primarily meant to regulate conduct and not merely pure speech. Id.; accord Art. I, § 4, Fla. Const.

The statute prohibiting sexual performance by children falls into this latter category of cases, since its obvious purpose is to prohibit certain forms of child exploitation. Thus, it is intended to regulate types of conduct and depictions of such conduct that, within the context of this case, also may have some incidental expressive content. See § 827.071, Fla.Stat. (1987).

In its opinion, the Tirohn court found a portion of the statute overbroad that criminalizes certain acts or depictions involving “actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast_" Tirohn, 556 So.2d at 449 (quoting § 827.071(l)(g), Fla.Stat. (1987)).

The court agreed that this language was defective and endorsed the following examples of overbreadth: [T]he statutory definition of sexual conduct as drafted would prohibit possession of a picture of a father bathing his son, two clothed children hugging each other in such a way that their clothed genitals made actual physical contact, or a photograph of a junior high school coach giving a congratulatory smack of the hand to the buttocks of one of his players fully dressed in football uniform. Id. at 448-49. Many other similar examples are noted by Schmitt in his appellate brief.

Schmitt notes generally that virtually any photograph of close physical contact with a minor violates the statute. On the face of the statute, this unquestionably is true. Although these examples are hypothetical, the overbreadth doctrine requires us to consider the potential chilling effect of

section 827.071 in all of these various contexts. Indeed, a comparison of this statute with Florida’s civil child-abuse statute reveals a puzzling inconsistency. The latter statute clearly is intended to deal with child abuse that does not necessarily rise to the level of .being a crime but which nevertheless is harmful to minors. Yet, the civil child-abuse statute contains a far narrower standard than does its criminal-law counterpart contained in subsection 827.071(l)(g).

The civil child-abuse prevention statute does not define simple nudity as a form of “sexual abuse of a child” unless such exposure ... is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose. § 415.503(17)©, Fla.Stat. (1987). Similarly, actual physical contact with a minor is not a form of sexual child abuse if it may reasonably be construed to be a normal caretaker responsibility, an interaction with, or affection for a child; or ... [a]ny act intended for a valid medical purpose. § 415.503(17)(d), Fla.Stat. (1987). The perplexing result is that, under

section 827.071(l)(g), conduct is declared to be a felony that could not possibly be considered evidence of child abuse under

chapter 415. On the face of the former statute, anyone who owns a photograph of a parent changing a baby’s diaper technically has committed the crime of unlawfully possessing a depiction of “sexual conduct by a child,” at least as that term is defined in subsection 827.071(l)(g). This crime is a third degree felony punishable by up to five years in prison. Compare id. with § 775.082(3)(d), Fla.Stat. (1987). Yet the actual act of changing the diaper is expressly declared not to be a form of child abuse under

chapter 415 and thus would not even prompt a state investigation of the matter. This serious inconsistency in itself reveals how substantially overbroad subsection 827.071(l)(

g) is. We thus can only conclude that the portion of this statute stricken by the Tirohn court impermissibly chills the exercise of free speech and expression. Among other reasons, a chilling effect occurs because this portion of the statute directly restricts the ability to create or possess photographs or films of entirely innocent and innocuous activities involving families and children, which clearly are protected by the guarantee of free expression. Art. I, § 4, Fla. Const. B.Due Process Schmitt also argues that subsection 827.071(l)(

g) violates Florida’s guarantee of due process. Art. I, § 9, Fla. Const. We previously have stated the applicable rule: As Judge Grimes phrased it in [State v. Walker, 444 So.2d 1137, 1140 (Fla. 2d DCA), affirmed & adopted, 461 So.2d 108 (Fla.1984)], “without evidence of criminal behavior, the prohibition of this conduct lacks any rational relation to the legislative purpose” and “criminalizes activity that is otherwise inherently innocent.” Such an exercise of the police power is unwarranted under the circumstances and violates the due process clauses of our federal and state constitutions. State v.

Saiez, 489 So.2d 1125, 1129 (Fla.1986). In other words, a due process violation occurs if a criminal statute’s means is not rationally related to its purposes and, as a result, it criminalizes innocuous conduct. Art. I, § 9, Fla. Const. We agree that a violation of this principle has occurred in the present case. Here, there can be no rational reason for the legislature to criminalize the possession of innocent photographs of adults interacting with children, nor do we believe this was the legislature’s true intent.

While the legislature certainly has authority to eliminate child exploitation, it must do so with a reasonable precision that does not simultaneously outlaw innocent conduct and the normal incidents of home-life. As the Fifth District has noted, this statute would render illegal the possession of a snapshot of a parent bathing a baby, among other examples. To the extent this is true, the statute lacks a rational relationship to its obvious purpose and is void under the guarantee of due process. Art. I, § 9, Fla. Const. C.Vagueness Schmitt further challenges the statute as being impermissibly vague.

We find this argument meritless. The statute certainly is not vague, since even its over-broad portion is sufficiently definite in language to tell persons of reasonable intelligence the kind of conduct that is proscribed. See State v. Ferrari, 398 So.2d 804 (Fla.1981). D.Alleged Deficiencies in Subsection 827.071(5) In his brief, Schmitt alleges that subsection 827.071(5), under which he was convicted, is void because it lacks a sufficient scienter element and is overbroad. We disagree that subsection 827.071(5) lacks a sufficient scienter element.

Indeed, it contains two separate intent requirements: It is unlawful for any person to knowingly possess any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he knows to include any sexual conduct by a child. § 827.071(5), Fla.Stat. (1987). There thus is no question that the misbehavior reached by the statute is the intentional exploitation of children. This is legitimately related to the legislative goal of eliminating the market for the fruits of such exploitation.

However, for the reasons expressed above, we agree that subsection 827.071(5) is over-broad to the extent that it incorporates by reference the definitional element of subsection 827.071(l)(

g) that was stricken by the Tirohn court. E. Severability The question remaining is whether the constitutional defects noted above require us to strike all of

section 827.071 or whether we may adopt a limiting construction. We believe the latter course is in order. This conclusion is supported by the United States Supreme Court’s recent opinion in Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), which addressed whether a state court always must strike an overbroad statute in its entirety. There, the Ohio Supreme Court had eliminated the overbreadth of a state child pornography statute by judicially reading a scienter element into it, much like the action taken by the district court below.

The Osborne majority expressed reservations about this procedure but approved it nonetheless. Thus, the Osborne Court clearly recognized that state courts may adopt a narrowing construction that eliminates statutory overbreadth. We thus must determine whether Florida law permits our own courts to take a similar action. Tempting as the Fourth District’s analysis below may seem, we are deeply troubled by its suggestion that a court may read a lewdness element into a statute that plainly lacks one, in its pertinent parts. See § 827.071, Fla.Stat. (1987).

Florida’s strong adherence to a strict separation of powers doctrine, art. II, § 3, Fla. Const., has led this Court to repeatedly warn against judicial legislation. In Brown, for example, we stated: The Florida Constitution requires a certain precision defined by the legislature, not legislation articulated by the judiciary. Brown, 358 So.2d at 20 (citing art. II, § 3, Fla. Const.). Because of Florida’s nondele-gation doctrine, we believe the court below erred in reading an additional element into a statute. In re Order on Prosecution of Criminal Appeals, 561 So.2d 1130, 1137 (Fla.1990).

As noted above, the other approach to this problem was that of the Tirohn court, which simply excised the statutory language it found to be overbroad. The Ti-rohn court did so by resort to a four-part test we recently applied in the case of Waldrup v. Dugger, 562 So.2d 687, 693 (Fla.1990). This test is used to determine if unconstitutional subunits of statutes are severable. Put another way, the question is whether the taint of an illegal provision has infected the entire enactment, requiring the whole unit to fail. The four-part test originated in our earlier opinion in Cramp v.

Board of Public Instruction, 137 So.2d 828, 830 (Fla.1962), upon which Tirohn directly relied. Tirohn, 556 So.2d at 449.

The Cramp test is as follows: “When a part of a statute is declared unconstitutional the remainder of the act will be permitted to stand provided: (1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed the one without the other and,

(4) an act complete in itself remains after the invalid provisions are stricken.” Waldrup, 562 So.2d at 693 (quoting Cramp, 137 So.2d at 830). Accord Tirohn, 556 So.2d at 449. The Cramp test is a well established component of Florida law. It has been applied repeatedly in countless Florida cases, some of which are cited by the Tirohn court. 556 So.2d at 449. The Cramp test also harmonizes with the non-delegation doctrine, since the test is designed to show great deference to the legislative prerogative to enact laws. Art. II, § 3, Fla. Const.

Accordingly, we agree that the Tirohn court’s method of analysis is the appropriate one to apply here. On this question, we first find that the illegal language of subsection 827.-071(l)(

g) clearly can be separated from the remaining valid language without rendering the enactment nonsensical or otherwise changing its essential meaning beyond what is necessary to cure the constitutional defect. Second, the legislative purpose clearly is served by severing the illegal portion.

Section 827.071 expresses an undeniable legislative intent to root out child exploitation, and we believe this Court would do a grave disservice to the state by striking the remainder of the statute simply because a single clause is unconstitutional. Third, in light of the statute’s compelling purpose, we believe it self-evident that the legislature would have approved the remainder of the statute without the illegal portion had it appreciated the deficiencies of the latter. Fourth and last, there is no doubt that

an act complete in itself remains after the invalid portion has been removed. Waldrup, 562 So.2d at 693 (quoting Cramp, 137 So.2d at 830). The remainder of the statute directly outlaws sexual abuse and sexual exploitation of children in a way that harmonizes with Florida’s civil child-abuse laws. To this extent, it is entirely permissible. For the foregoing reasons, we hold subsection 827.071(l)(

g) void solely to the extent that it defines “sexual conduct” to include “actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast;....” We find that, in light of the foregoing holding, subsections 827.071(l)(

g) and 827.-071(5) are otherwise constitutional and valid. The other conduct proscribed by the relevant portions of the statute consists of several kinds of actual or simulated sexual acts, bestiality, masturbation, sadomasochism, lewd exhibition of the genitals, or actual or simulated sexual battery. § 827.-071(l)(g), Fla.Stat. (1987). Each of these elements is precisely defined either in the statute itself or by reference to terms such as “lewd” that have a sufficiently narrow meaning under Florida’s common law, as noted above. § 827.071(1), Fla.Stat. (1987).

More to the point, the nature of these other acts is qualitatively different from those described in the unconstitutional portion of subsection 827.071(l)(g). Each of these acts are of a kind that, in all contexts, are likely to result in serious physical or psychological harm to children who participate in them. Society’s interest in preventing such participation is compelling. This is in sharp contrast to the language excised by the Tirohn court and by our opinion today, which unquestionably included countless kinds of completely innocent, innocuous conduct.

V Failure to Use the Legal Definition of “Obscenity” In a separate argument, Schmitt challenges

section 827.071 on grounds that it fails to define child exploitation offenses in the same terms the Constitution mandates for “obscenity.” We do not believe this to be error in this instance. The law plainly allows a lesser tolerance for depictions of the sexual exploitation of children. Here as in Osborne, the state’s primary purpose is to destroy the market for such material and thus eliminate the economic incentive for the exploitation itself. Indeed, the exploitation of children for sexual purposes involves a level of heinousness of the highest magnitude.

Even if obscenity analysis is applicable in this context, we thus believe that a conviction for possessing depictions rendered unlawful under

section 827.071 as construed in this opinion always would meet the test for “obscenity” developed in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973). There, the Court stated the following method of proving “obscenity”: (

a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest ...; (

b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (

c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Id. (citations omitted). The conduct described in

section 827.071, as construed above, inherently involves conduct that appeals to prurient interest, and inherently depicts patently offensive sexual conduct as that term is specifically defined in Florida law. Our opinion today eliminates the possibility that depictions of innocent conduct might be encompassed within this definition. Moreover, we can conceive of no serious literary, artistic, political, or scientific interests that would ever justify the sexual or sadomasochistic exploitation of children. By convicting under

section 827.071 as construed here, a fact finder logically and necessarily concludes that all the elements of the Miller test have been satisfied. Accordingly, Schmitt’s argument on this question must fail. VI. Conclusions For the foregoing reasons, the opinion below is approved in part and quashed in part. We agree that a substantial basis existed for a magistrate to issue a warrant for the search of Schmitt’s home. We agree that subsections 827.071(l)(

g) and 827.071(5) are constitutional, since we find that these provisions are constitutional as we have construed them above. On this last question, we disagree with the analysis and rationale of the court below and quash the opinion to this extent. However, because the result reached below was correct, no remand is necessary. Finally, we approve the result reached in Tirohn. It is so ordered. SHAW, C.J., and OVERTON, BARKETT, GRIMES and HARDING, JJ., concur. McDONALD, J., concurs in result and dissents in part with an opinion. KOGAN, J., concurs in part and dissents in part with an opinion. .

There thus is a double scienter requirement. . The information, however, did not charge any offense under Florida’s obscenity statute,

chapter 847, Florida Statutes (1987). .

Section 827.071, Florida Statutes (1987), prohibits several discrete kinds of conduct. On the face of the statute, only one kind requires a “lewdness” element — “lewd exhibition of the genitals.” § 827.071(l)(g), Fla.Stat. (1987). . Obviously, the terms "obscene” and “non-obscene” must be given their legal definition, not the more loose workaday definition employed in common American usage. . We are aware that in McGuire v.

State, 489 So.2d 729, 731 (Fla.1986), we stated that “nudity is not in and of itself a constitutionally protected activity.” However, this statement clearly was a reference to public nudity, not nudity in a place where a person has a right of privacy. Indeed, the factual issue in McGuire was whether a woman could be prosecuted for jogging topless along a public beach. Id. at 730. In other words, the additional element in McGuire was the defendant’s appearance in a public place. McGuire also expressly noted that it was not confronting any free-expression issues.

Id. at 731. .Even Florida’s civil child-abuse prevention statutes have reached these same conclusions by defining nudity as a form of "sexual abuse of a child" only if such exposure ... is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose. § 415.503(17)(f), Fla.Stat. (1987).

These same statutes likewise expressly recognize that adults may physically touch a child whenever the contact may reasonably be construed to be a normal caretaker responsibility, an interaction with, or affection for a child; or ... [a]ny act intended for a valid medical purpose. § 415.503(17)(d), Fla.Stat. (1987). . However, infra we find unconstitutionally overbroad that portion of the statute making it unlawful to possess depictions or representations of someone touching a persons’ clothed or unclothed privates or buttocks.

Thus, probable cause could not be established simply by making factual allegations that such depictions or representations exist. . The act must be intentional. For example, deliberately exhibiting one’s nude body to passers-by in a shopping mall would be “lewd” and "lascivious.” Being stripped naked against one’s will in the same location is neither “lewd” nor “lascivious" because it is not intentional. .

Although not relevant here, the terms "lewd" and “lascivious" have a specialized meaning in the context of photographs, films, or other depictions: an obnoxiously debasing and offensive portrayal of sex acts that can be characterized as "obscene.” Stall v. State, 570 So.2d 257, 259 (Fla.1990) (quoting Manual Enters, Inc. v. Day, 370 U.S. 478, 482-84, 82 S.Ct. 1432, 1434-35, 8 L.Ed.2d 639 (1962), cert. denied, — U.S. —, 111 S.Ct. 2888, 115 L.Ed.2d 1054 (1991)). . Obviously, minor children are legally incapable of consenting to a sexual act in most circumstances. See, e.g., Fla.Stat. §§ 794.041 & 794.05 (1989).

One exception is for a minor who is lawfully married. Fla.Stat. § 743.01 (1989). . In dictum the majority expressed some concern that such a judicial revision of the statute "might be barred by the Due Process Clause” (emphasis added). Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 1701, 109 L.Ed.2d 98 (1990). The Court did not elaborate on this dictum, which obviously is not a part of the holding of the case and thus is not binding upon us. We need not and therefore do not confront the possible due process issue suggested by the Osborne Court’s dictum.

The issue has not been briefed and is not necessary to the resolution of this case. Nor is it clear what the Osborne Court intended by this remark. . The Cramp test rests on another Florida rule that severability does not always depend on the inclusion of a severability clause in a legislative enactment. Such a clause only buttresses the case for severability. If the four parts of the Cramp test are met, severability can occur whether or not the enactment contains a sever-ability clause.

Simultaneously, the inclusion of a severability clause will not save a statute if the unconstitutional portions clearly cannot be severed. See Cramp v. Board of Public Instruction, 137 So.2d 828 (Fla.1962). . We note, however, that our opinion applies only to the statutes as they existed prior to amendments made to them in 1991. The Legislature has altered the relevant portions of the statutes by adding a new intent element. See Ch. 91-33, § 1, Laws of Fla. (1991) (effective Oct. 1, 1991). Obviously, our opinion today does not address any question about the validity of the statutes as amended.